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New Orleans pipe manufacturer not liable in death of temporary 'borrowed employee,' federal judge rules


By Karen Kidd | Nov 13, 2018

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NEW ORLEANS — A federal judge recently tossed out a lawsuit brought by the mother of a temporary employee who succumbed to injuries sustained on the job at a New Orleans pipe manufacturing site last year.

The fatal workplace accident lawsuit against Forterra Pipe and Precast, filed Lerner Davis, mother of the late Lester Brian Cook, is barred because Cook was a temporary employee, U.S. District Court Judge Sarah S. Vance, on the bench in Louisiana's Eastern District, said in her 18-page order issued Nov. 5.

"Because the Court finds that Lester Cook was a borrowed employee of defendant, plaintiff’s complaint is barred by the exclusivity provisions of the Louisiana Workers' Compensation Act," Vance said in her order.

U.S. District Court Judge Sarah S. Vance

In its motion for summary judgment granted by Vance, Forterra argued it is not for Cook's death on the company's worksite because the LWCA requires employees injured in an accident on the job to recover workers' compensation benefits from his or her employer.

"A so-called 'borrowed employee' or 'borrowed servant' is also limited to workers' compensation benefits," Vance said in her order. "Plaintiff therefore cannot bring her state law claims if Cook was Forterra’s 'borrowed employee'."

Cook was a temporary employee assigned by Lofton Staffing Services' New Orleans office and was assigned to work at Forterry beginning in January 2016, according to the background portion of Vance's order. Cook was still a temporary employee more than a year later when on Feb. 2, 2017, he was severely injured on machinery called a 'pipe jacket' and died from those injuries about two weeks later.

His mother filed her wrongful death lawsuit the following May. In June, Forterra moved the case to federal court. Forterra subsequently filed a motion for summary judgment, claiming Cook's mother's claims are barred under the LWCA's exclusivity provisions.

Judge Vance agreed.

"Plaintiff's saying the evidence in the case is overwhelming that Cook was "a borrowed employee of Fonterra at the time of the accident," a temporary employee provided by Lofton.

"The evidence overwhelmingly favors borrowed employee status," Vance wrote in her order. "Plaintiff's recovery is therefore limited to workers' compensation benefits pursuant to the LWCA and her state law claims must be dismissed."

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